Who among us has not engaged in - or at least observed - a discussion (debate, mutual assault ... whatever) on the topic of Gay marriage? It is certainly among the most overheated of issues in our current culture wars.

While "defenders of marriage" are unbending in their assurance that marriage is between one man and one woman, it's difficult to get a handle on why this is so clear in our current age. What, after all, is the purpose of marriage? Is it for procreation? If so, then where is the sanctity of marriage when the partners have no intention to bear children? If marriage is an avenue to sanction sex in our society, why is it that many of the most sanctimonious have cheated on their spouses? If the "defenders of marriage" are pushing to limit all sexual expression to that which occurs within marriage, that is about as futile as trying to get Kansans to pass a tax increase to help Seattleites pay for replacing the Alaskan Way Viaduct.

If it is to "protect" heterosexuality in our culture, I am put in mind of Archbishop John Shelby Spong's lyrical and moving exposition of popular misconceptions concerning the Bible's alleged condemnation of homosexuality. I suspect that the issue is fundamentally about the visceral unease which the more socially conservative in our country feel at the development of a cultural shift toward a particular tolerance - which I might suggest is among the chief features of our mature, liberal, democratic tradition.
I write this in the wake of the molten furor that has erupted over Mark Foley's behavior and the efforts of outrageous and hate-filled Gay-bashers like Pat Buchanan and James Dobson to use Foley's disgusting behavior as a cudgel against Gay officeholders. These people are descended from the same defenders of the faith who lynched black men for walking down the street with a white woman or who sanctioned the branding of those committing adultery.

Well ... okay, now that I've made my complete neutrality in the culture wars so clear, I'd like to return to the basic question of "What is marriage and has it always meant the same thing to us?" No better exposition of the topic can be found than Stephanie Coontz's classic Marriage, a History - How Love Conquered Marriage. Coontz, a faculty member at Evergreen in Olympia has, in one volume, embraced the entire panorama of marital history, from before the ancient Greeks to the present.

As she so often reminds us, those who yearn for the "good old days" are going to be sorely disappointed as no such time or place ever really existed. The nuggets she provides, though, are well worth the wade through her book. Her primary thesis, as suggested by the title, is that marriage for love is a relatively recent development in the institution. She traces this turn in social history to a confluence of events in the 16th and 17th centuries, when the Enlightenment secularized many social institutions and the proliferation of wage employment eroded the dependence of young people on their families. Prior to that time, marriage was a strong economic and political bond, but if love ever graced the coupling, it was by mere luck and not intent.

For hundreds of years, couples could marry by simply stating their intention to so join. No ceremony or public documents needed to adorn the union. In the Middle Ages, couples could fairly easily end their marriages as well. Coontz notes that medieval marriage could end when a couple swore that "discord reigns between us and communal life has become impossible." One legal formula declared that because "there is no charity according to God" between a particular couple, "they have decided that each of them should be free to enter into the service of God in a monastery or to contract a new marriage."

The practice of private marriage was a basic part of the fabric of European life for centuries and the Church, growing in power, abhorred the practice, yet could not completely buck the tide of custom. The Church did, however, make divorce difficult to the point of impossibility from the late Middle Ages and later. Parties could get a "separation" rather than a divorce, but, of course, they could not marry again. Annulment did permit remarriage, but the grounds were strictly limited. Infertility of the wife was not a ground, but the impotence of the husband was. The discussion of medieval treatment of the claim of impotence in marriage is just one of the many passages that make this book so readable.

A man's impotence was grounds for annulment, but to prove it, he had to submit to a humiliating ordeal designed to make sure he and his wife were not colluding to end their marriage. As one church legal expert laid out the procedure, "The man and woman are placed together in one bed and wise women are to be summoned around the bed for many nights. And if the man's member is always found useless and as if dead, the couple are well able to be separated."

So much for the good old days.

The modern conception of marriage had many birthing points, but surely the Victorian era marks a significant time. This period saw the evocation of separate spheres of influence and personal character. Social commentators would probably be comfortable with John Gray's Men Are from Mars, Women Are from Venus descriptions. Men were increasingly viewed as coarse inhabitants of the cruel, hard world and women as the gentle, moral protectors of the home, children and men's better natures.

Sexuality took a major hit with the Victorians, as women were strongly pressured to eschew their sexuality, even within marriage. Victorian women were legally subordinated to men and Coontz notes that this is consistent with "a remarkable continuity of the legal subjugation of women from the Middle Ages to the end of the nineteenth century." She actually cites Blackstone, who in 1765 intoned, "the very being or legal existence of the woman is suspended" upon marriage.

The Roaring '20s did introduce a new era of freer expression of sexuality. Economics also played a major role, as, for the first time, a majority of American children lived in a home where the father was the major wage earner and the mother did not work full-time outside the home. Coontz cites magazine articles of the era with titles like "I Gave Up My Law Books for a Cook Book."

By the 1950s, the so-called "Golden Age" of Ward and June Cleaver was fueled in large measure by the post-war economic boom, which allowed men to completely support a family from their earnings alone, and encouraged women to stay home and raise the children with the help of a truly overwhelming array of modern housewares. Coontz makes it clear that the single earner family of the '50s, that so many seem to remember longingly, was an artifact of a unique confluence of economic forces that had begun to reverse themselves by the '70s.

Throughout the last 200 years, however, marriage has been romanticized as a joining of two partners out of love ... and as Coontz notes, the weakness of this union is embedded in that very fact. As the love fades, there is less reason to stay married. Thus, with the rise of marriage for love comes the concomitant increase in divorce rates. By 1970, California became the first state in the union to permit no-fault divorce. The enshrinement of love as the foundation for marriage brought with it, as well, the dramatic increase of individuals cohabitating without the marital formalities. Societal stigmas, which had once scorned cohabitation or children born out of wedlock, faded, dried up and blew away.

So what were the good old days? The 1920s and every succeeding decade when social commentators bemoaned the dramatic increase in divorce? The 1950s when children born out of wedlock had "illegitimate" stamped on their birth certificates and school records - a decade when two-thirds of women who started college dropped out, usually to get married; when a non-virgin could not bring a charge of rape in many states; and when spousal abuse was trivialized?

If there is one point made exceedingly clear by Coontz's history, it is that marriage is any society's quintessentially fluid institution. I also would suggest that because it is so commonly associated with socially sanctioned sexual behavior - and sex is such an exquisitely difficult topic in American culture - marriage or family and all of their permutations (cohabitation, same-sex unions, planned single-parent households) always will be at the cutting edge of our cultural distress. Certainly, romanticizing something that never existed isn't the best way of negotiating such passages.

Joe Shaub is a family lawyer and mediator. He is also a licensed marriage and family therapist with offices in Seattle and Bellevue. He has conducted law firm workshops and retreats for the past 12 years. He can be reached at 206-587-0417 or through his Web site: shaublaw.com. Originally published in the November 2006 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.

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